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DisclosureFood and Consumer Product Safety Action Plan
4. Consumer Products
The Action Plan proposes legislative and regulatory initiatives as well as program measures to enhance the Government's ability to help protect Canadians from unsafe consumer products. The Action Plan proposes the introduction of a new Canadian Consumer Product Safety Act that would modernize the consumer product safety regime in Canada, and generate needed amendments to the Food and Drugs Act (for cosmetics) and the Radiation Emitting Devices Act (for products such as microwave ovens and tanning beds). Other products such as consumer pesticides regulated under the recently revised Pest Control Products Act, while not requiring new authorities would be addressed under the Action Plan through program measures.
Currently, the Government's key legislation governing consumer product safety is the Hazardous Products Act. Part I of the Act lists consumer products, which are either restricted through regulation or outright prohibited from being advertised, sold or imported into Canada. There are approximately 30 products and product categories that are regulated (e.g. toys, consumer chemicals), and some 25 others that are prohibited (e.g. baby walkers, lawn darts, and products containing toxic substances). The manufacture, import and sale of products may be regulated or controlled under other acts.
In the event that a product that is not regulated or prohibited poses a health or safety risk, it is up to industry to voluntarily issue and manage a recall. The Government's authority is limited to issuing a public warning and, as necessary, undertaking the process of regulating or prohibiting the product under the Hazardous Products Act.
The Action Plan for Consumer Products will:
Prevent Problems by:
- creating a new general prohibition that would allow Health Canada to address any consumer product in Canada that poses a danger to the health or safety of the public; and
- providing expanded information, guidance and tools to industry to reinforce awareness of, and commitment to consumer product safety.
Enhance Targeted Oversight by:
- creating new authorities requiring suppliers to report health- and safety-related product defects and adverse incidents; and
- expanding compliance promotion and enforcement activities by facilitating more cost-effective risk-based inspections.
Support Rapid Response by:
- creating new authorities to order recalls or other corrective measures when products pose a danger to health or safety of the public; and
- communicating safety risks to the public: including annual compliance reports, and reports on injuries and illness.
4.1 Expand the Post-market Safety Regime (General Prohibition)
Consumer products covered under the Hazardous Products Act are generally safe and are less likely to carry health or safety risks, when designed, manufactured and used appropriately. As such, they do not warrant a pre-market approval process as is the case for health products. Furthermore, the large range and number of consumer products in the marketplace would make such a process cumbersome and place unnecessary burden on industry.
Nevertheless, given that all Canadians interact with consumer products on a daily basis, a baseline level of consumer protection is required, particularly where specific product regulations or standards do not exist and unforeseen hazards arise. The proposed legislation would introduce a general prohibition against the manufacture, importation, advertisement and sale of consumer products that are, or are likely to be, a danger to the health or safety of the public regardless of whether they are subject to product-specific regulations. This approach would address general types of hazards such as flammability, chemical, physical, electrical, biological and mechanical/design hazards that could reasonably be expected to cause illness, injury or death. It would also be consistent with regimes used by international partners.
The new Act would also provide the authority to order corrective measures when product safety concerns are identified (e.g., product recall, stop sale, labelling, product re-design). It would be up to the company to carry out the corrective measures and to demonstrate that the safety concerns have been addressed. Failure to comply with the corrective measures could result in significant monetary penalties or criminal charges (see section 4.5 More Effective Fines and Penalties).
4.2 Report Serious Product Safety Incidents and Record Keeping
The new Act would require industry to report health and safety issues concerning their products. For example:
- reports of serious injuries, near-miss incidents and deaths arising from use of a product; and
- test results or quality control information revealing that a product is defective, noncompliant or otherwise unsafe.
The new Act would ensure that this information could be shared as appropriate, balancing privacy and confidentiality concerns with the public's information requirements for protecting health and safety.
Since more products are sourced abroad, it is increasingly important that appropriate records, including information about the foreign manufacturer, be maintained by the Canadian supplier, so that effective follow up action can be taken with them. Under the new Act, Canadian companies would be required to keep records related to the traceability of their product and be able to make them available to inspectors upon request.
4.3 Strengthen Consumer Product Recall and Other Corrective Measures
The new Act would provide enhanced authorities to address consumer products that pose a danger to the health and safety of Canadians when they occur, including the power to require that corrective measures be implemented. The ability to order recalls of consumer products would improve the Government's ability to respond effectively to health or safety risks and bring Canada's approach in line with those of major trading partners such as the United States and the European Union.
Other corrective measures would include the authority to order a company to take steps to reduce risks, such as issuing public advisories; stop manufacturing, importing and advertising; product labelling or other corrective measures deemed necessary to deal with the risk to health or safety.
4.4 Improve Import Safety
International Partnerships: China is an important partner for Canada in the trade of consumer products. For example, some 80% of toys imported into Canada are from Chinese origin. Recent concerns about imports of China have emphasized the need for our two countries to work together to resolve issues of common concern. Accordingly, a Memorandum of Understanding (MOU) was signed in November 2007, that will see the establishment of technical working groups on consumer product safety issues of interest, and other mechanisms to facilitate information exchange, including conducting urgent consultations on significant consumer product safety concerns.
Border Surveillance: In support of the new Act, collaboration among affected Government of Canada Departments and Agencies will be undertaken to identify consumer products of concern at point of entry into Canada and to reduce the level of prohibited and non-compliant consumer products from gaining access to market. As imports of consumer products into the Canadian market continue to increase emphasis on border issues, including information-sharing would provide access to "real time" information on importation, thereby allowing closer monitoring of what is coming into Canada from foreign sources and faster responses to health or safety issues. This collaboration would also extend to products covered by the Pest Control Products Act.
4.5 More Effective Fines and Penalties
The Action Plan proposes new approaches to fines and penalties that would be used when industry does not comply with safety requirements. For example, the new Act would raise penalties for criminal offences related to consumer products, in order to provide a stronger deterrent for significant violations of the Act or regulations that jeopardize the health or safety of the public. These penalties would be consistent with other modern federal health protection legislation such as the Pest Control Products Act and the proposed new fines and penalties under the Food and Drugs Act.
Currently, under the Hazardous Products Act, offenders can face criminal charges. However, experience shows that criminal charges may not always be appropriate. They are cumbersome and time-consuming in cases where the offence is less serious or administrative in nature.
Alternatively, a new Administrative Monetary Penalties Scheme (AMPS) would be created as a means to encourage compliance with the new Act. The AMPS would not replace criminal offences under the new Act. Significant violations of the Act or regulations would continue to be offences and could be prosecuted through the courts, as under the previous Hazardous Products Act.
The rationale for proposing an AMPS scheme in the new Act is the need for a timely and effective mechanism to promote compliance with the legislation. For consumer products, the AMPS would be an effective post-market tool for addressing situations that cannot be resolved voluntarily, and for which criminal prosecution is not appropriate.
Many of the specifics for the AMPS, in particular, classes of violations, the level and range of penalties and the review process will be set out in regulations that will support the new legislation. The Government will be seeking feedback on how best to establish and administer the AMPS.
4.6 Improve Information for Consumers and Decision-makers
Consumers want to be equipped with complete and reliable information to ensure that they are acquiring safe consumer products and using them safely. A consumer information initiative would make greater, more accurate, relevant and credible information available to and accessible by consumers to help make product choices according to health and safety risks, and use them safely. Elements of this initiative would include producing educational materials related to the safe selection of toys and the safe use of chemicals, as well as posting summary information on injuries and incidents, compliance reports and consultations.
